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WISCONSIN MAINTENANCE

by Attorney Gordon S. Johnson, Jr.

In addition to being ordered to pay child support, a former
spouse can also be required to maintenance after a divorce. Maintenance,
formerly called alimony, is the payment of money, usually on a
monthly basis to help support the former spouse as the cliche
goes in the "lifestyle to which they had become accustomed."
Maintenance can be awarded either to the husband or the wife,
but only if the parties have been married for a substantial period
of time.

Unfortunately, there is probably nothing harder to predict
in the outcome of a divorce than length and amount of maintenance
which may be awarded. Each case is different and each trial judge
looks at similar cases, a little differently. While typically
the appellate courts would help to iron out the differences between
judges, in practice, there is little agreement amongst appellate
judges on what is appropriate. Thus, maintenance is the most unpredictable,
and often the hardest fought economic issue.

Maintenance was essentially "invented" to protect
housewives of long term marriages from financial hardship if they
were get divorced, and few people would argue that it was appropriate
in situation similar to if our fathers had divorced our mothers.
But with the radical change in spousal roles and income earning
potential, and the greater frequency of divorce, maintenance awards
can be very controversial and create long term bitterness between
the parties.

As enunciated by the Wisconsin Supreme Court maintenance has
two purposes: to provide for the support of a former spouse and
assure fairness in terms of economic resources after a divorce.
The starting point for a maintenance calculation is to equalize
the earning capacity of two parties. Thus, if one spouse was earning
$100,000 and the other nothing, maintenance might be ordered in
the amount of $50,000. And if this was a divorce for people who
had been married for more than a generation, and had raised children,
the non working spouse might receive such maintenance for life.
But when both spouses work, and the marriage is 10 years or less,
rarely does maintenance completely equalized the income and it
may be for a relatively short duration.

The legislature has pronounced the following 10 factors for
a court to consider in a maintenance award:

767.26 Maintenance payments. (1) The length of the
marriage. (2) The age and physical and emotional health
of the parties. (3) The division of property made under
s. 767.255. (4) The educational level of each party at
the time of marriage and at the time the action is commenced. (5) The earning capacity of the party seeking maintenance,
including educational background, training, employment skills,
work experience, length of absence from the job market, custodial
responsibilities for children and the time and expense necessary
to acquire sufficient education or training to enable the party
to find appropriate employment. (6) The feasibility that
the party seeking maintenance can be-come self­supporting
at a standard of living reasonably comparable to that enjoyed
during the marriage, and, if so, the length of time necessary
to achieve this goal. (7) The tax consequences to each
party. (8) Any mutual agreement made by the parties before
or during the marriage, according to the terms of which one party
has made financial or service contributions to the other with
the expectation of reciprocation or other compensation in the
future, where such repayment has not been made, or any mutual
agreement made by the parties before or during the marriage concerning
any arrangement for the financial support of the parties. (9) The contribution by one party to the education, training
or increased earning power of the other. (10) Such other
factors as the court may in each individual case determine to
be relevant.

While 10 factors are laid out, the courts clearly begin by
looking at two issues, the income of the parties and the length
of the marriage. They then adjust the award after some, but often
not substantial consideration of the other factors. In any given
case, one factor may become very important, such as for example
contribution to the educational costs of someone whose spouse
put them through school.

The length of marriage issue is terribly important, both in
terms of whether maintenance should be paid at all and also, as
to the length of time that maintenance should be paid. Marriages
are classified as short term, long term and then something in
the middle. Short term marriages are often considered to be marriages
for less than 5 years, but with this length varying from judge
to judge. Long term marriages are often considered to be marriages
for twenty years or more, but again, this is sometimes as short
as 12-15 years, and sometimes, but sometimes marriages of more
than twenty years are not considered to be long term

Typically, it is thought that little or no maintenance will
be paid for a short term marriage, except in extraordinary situations.
In contrast, it is typically thought that indefinite or permanent
maintenance will be awarded in a long term marriage. It is the
cases in the middle, and defining just where the middle is, that
provides so much of the inconsistency. One could argue that the
courts and the legislatures have intentionally made maintenance
unpredictable, to ensure that the twin goals of support and fairness
become the focus, and not some mechanical application of a computer
generated economic calculation. If that is the goal, it has been
achieved.

Maintenance, even so called permanent maintenance, is not permanent.
This indefinite maintenance is paid only so long as both spouses
live, and terminates on the remarriage of the spouse receiving
the maintenance. It can also be terminated or modified if there
is a substantial change of circumstances after the divorce, such
as retirement, or changes in either parties resources or need
for maintenance.

Unlike child support, maintenance is a tax deduction for the
person paying the maintenance and increases the income of the
person receiving maintenance.

Occasionally, guaranteed payments, called Section 71 payments
(for sec. 71 of the Internal Revenue Code which allows for their
deductibility) are agreed to in a settlement. This compromise
payment is paid in lieu of maintenance and will typically be paid
for a specified number of years, irrespective of whether the recipient
spouse remarries. Sometimes "family support" is also
agreed to as a compromise, which is a combination of child support
and maintenance, but is deductible by the paying spouse and includable
in income of the recipient spouse. Both family support nor Section
71 are used to make settlements more attractive to both parties,
but can never be ordered by the court.

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